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SECOND DIVISION
SPOUSES NI CASIO C.
MARQUEZ AND ANITA J.
MARQUEZ,
Petitioners,
- versus -
SPOUSES CARLITO ALINDOG
AND CARMEN ALINDOG,
Respondents.
G.R. No. 184045
Present:
CARPIO, J, Chairperson,
BRION,
DEL CASTILLO,
PEREZ, and
PERLAS-BERNABE, JJ
PromuJgated:
JAN 2 2 2014
:x-----------------------------------------------------------------------------------------:x
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari
1
are the Decision
2
dated February 29, 2008 and Resolution
3
dated August 6, 2008 of the Court
of Appeals (CA) in CA-G.R. SP No. 97744 finding no grave abuse of
discretion on the part of the Regional Trial Court of Tagaytay City, Branch
18 (RTC) in issuing the Orders dated November 14, 2005
4
and January 17,
2007
5
in SCA No. TG-05-2521. Based on these orders, a writ of preliminary
injunction was issued against petitioners-spouses Nicasio C. Marquez and
Anita J. Marquez (Sps. Marquez), enjoining them from taking possession of
the property subject of this case despite the consolidation of their title over
the same.
Rollo, pp. I 0-32.
2
Id. at 35-41. Penned by Associate Justice Japar B. Dimaampao, with Associate Justices Mario L.
Guarifia III and Sixto C. Marella, Jr., concurring.
Id. at 42-43.
4
Id. at 69-70. Penned by Presiding Judge Edwin G. Larida, Jr.
Id. at 71-72.
Decision 2 G.R. No. 184045
The Facts

Records show that sometime in J une 1998, petitioner Anita J .
Marquez (Anita) extended a loan in the amount of P500,000.00 to a certain
Benjamin Gutierrez (Gutierrez). As security therefor, Gutierrez executed a
Deed of Real Estate Mortgage
6
dated J une 16, 1998 over a parcel of land
located in Tagaytay City with an area of 660 square meters, more or less,
covered by Transfer Certificate of Title (TCT) No. T-13443
7
(subject
property), registered under the name of Benjamin A. Gutierrez, married to
Liwanag Camerin (Sps. Gutiererez). The mortgage was duly annotated on
the dorsal portion of TCT No. T-13443, which Sps. Marquez had verified as
clean prior to the mortgage.
8


Since Gutierrez defaulted in the payment of his loan obligation, Anita
sought the extra-judicial foreclosure of the subject property. At the public
auction sale held on J anuary 19, 2000, Anita emerged as the highest bidder
for the amount of P1,171,000.00.
9
Upon Gutierrezs failure to redeem the
same property within the prescribed period therefor, title was consolidated
under TCT No. T-41939
10
on November 5, 2001 (in the name of Anita J .
Marquez, married to Nicasio C. Marquez) which, however, bore an
annotation of adverse claim
11
dated March 2, 2000 in the names of
respondents-spouses Carlito and Carmen Alindog (Sps. Alindog). Said
annotation was copied from an earlier annotation on TCT No. T-13443 made
only after the subject propertys mortgage to Sps. Marquez.

Subsequently, or on March 21, 2000, Sps. Alindog filed a civil case
for annulment of real estate mortgage and certificate of sale with prayer for
damages against Sps. Marquez and a certain Agripina Gonzales (Gonzales)
before the RTC, docketed as Civil Case No. TG-1966 (annulment case). In
their complaint,
12
Sps. Alindog alleged that they purchased
13
the subject
property from Gutierrez way back in September 1989, but were unable to
secure a certificate of title in their names because Gonzales to whom they
have entrusted said task had deceived them in that they were assured that
the said certificate was already being processed when such was not the
case.
14
Eventually, they found out that the property had already been
mortgaged to Sps. Marquez, and that when they tried to contact Gonzales for
an explanation, she could no longer be found. Separately, Sps. Alindog
averred that when the mortgage was executed in favor of Sps. Marquez,
Gutierrez was already dead.
15


6
Id. at 76-77.
7
Id. at 73-75.
8
Id. at 36.
9
Id. at 80-81.
10
Id. at 82-83.
11
Id. at 83.
12
Id. at 84-87.
13
See Deed of Absolute Sale dated September 1989; id. at 90-91.
14
Id. at 36-37.
15
Id. at 37.

Decision 3 G.R. No. 184045
In their defense,
16
Sps. Marquez disputed Sps. Alindogs ownership
over the subject property, arguing that the purported sale in the latters favor
was never registered and therefore, not binding upon them. Further, they
insisted that their certificate of title, TCT No. T-41939, was already
indefeasible, and cannot be attacked collaterally.

Meanwhile, on March 16, 2005, Anita filed an ex-parte petition for
the issuance of a writ of possession
17
(ex-parte petition) before the RTC,
docketed as LRC Case No. TG-05-1068, claiming that the same is
ministerial on the courts part following the consolidation of her and her
husbands title over the subject property. Impleaded in said petition are Sps.
Gutierrez, including all persons claiming rights under them.

The RTC Rulings and Subsequent Proceedings

In an Order
18
dated August 1, 2005, the RTC granted Anitas ex-
parte petition and thereby directed the issuance of a writ of possession in her
favor. Consequently, a notice to vacate
19
dated September 23, 2005 was
issued by Acting Sheriff Teodorico V. Cosare (Sheriff Cosare) against Sps.
Gutierrez and all persons claiming rights under them. Sps. Alindog were
served with a copy of the said notice to vacate on September 27, 2005.
20


Claiming that they would suffer irreparable injury if the
implementation of the writ of possession in favor of Sps. Marquez would be
left unrestrained, Sps. Alindog sought the issuance of a temporary
restraining order (TRO) and/or writ of preliminary injunction with prayer for
damages,
21
in a separate case docketed as SCA No. TG-05-2521
22

(injunction case) which was raffled to the same court.

While it appears that the RTC issued a 72-hour TRO on September
29, 2005 in Sps. Alindogs favor, records nonetheless show that said order
was not extended to a full 20-day TRO.
23
To this end, the Sheriffs Return
24

dated November 14, 2005 shows that Sheriff Cosare was able to implement
the writ of possession on November 11, 2005, turning over the possession of
the subject property to Sps. Marquez.

After further proceedings on the injunction case, the RTC, through an
Order
25
dated November 14, 2005, issued a writ of preliminary injunction
16
See Verified Consolidated Answer (With Special/Affirmative Defenses and Counterclaims); id. at 92-
103.
17
Id. at 105-108.
18
Id. at 113.
19
Id. at 115.
20
Id. at 118.
21
Id. at 116-120.
22
Initially docketed as Civil Case No. TG-05-2521.
23
Rollo, p. 69.
24
Id. at 114.
25
Id. at 69-70

Decision 4 G.R. No. 184045
enjoining Sps. Marquez from taking possession of the subject property until
after the controversy has been fully resolved on the merits. The said issuance
was based on the RTCs appreciation of the initial evidence adduced by Sps.
Alindog, concluding that they appear to have a right to be protected. Thus,
notwithstanding the consolidation of Sps. Marquezs title over the subject
property, the RTC granted Sps. Alindogs prayer for injunctive relief,
holding that any further dispossession on their part would cause them
irreparable injury.
26


Aggrieved, Sps. Marquez moved for reconsideration,
27
essentially
pointing out that, as the confirmed and registered owners of the subject
property, they are entitled to its possession as a matter of right. They argued
that pursuant to Sections 7
28
and 8
29
of Act No. 3135,
30
as amended by Act
No. 4118,
31
the RTC was legally bound to place them in possession of the
subject property pending resolution of the annulment case. Further, it is their
position that the purpose for the issuance of the injunctive writ i.e., to
restrain the implementation of the writ of possession had already been
rendered moot and academic by its actual enforcement in the interim.

For their part, Sps. Alindog filed a Motion for Approval of Cash Bond
and to Regain Possession
32
of the subject property.

26
Id. at 70.
27
See Motion for Reconsideration with Urgent Prayer to Recall/Defer Issuance of the Writ of
Preliminary Injunction; id. at 132-139.
28
Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First
Instance of the province or place where the property or any part thereof is situated, to give him
possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of
the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale
was made without violating the mortgage or without complying with the requirements of this Act.
Such petition shall be made under oath and filed in form of an ex parte motion in the registration or
cadastral proceedings if the property is registered, or in special proceedings in the case of property
registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative
Code, or of any other real property encumbered with a mortgage duly registered in the office of any
register of deeds in accordance with any existing law, and in each case the clerk of the court shall,
upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred
and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-
eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is situated, who shall
execute said order immediately.
29
Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty
days after the purchaser was given possession, petition that the sale be set aside and the writ of
possession cancelled, specifying the damages suffered by him, because the mortgage was not violated
or the sale was not made in accordance with the provisions hereof, and the court shall take cognizance
of this petition in accordance with the summary procedure provided for in section one hundred and
twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor
justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained
possession. Either of the parties may appeal from the order of the judge in accordance with section
fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall continue in
effect during the pendency of the appeal.
30
Entitled AN ACT TO REGULATE THE SALE OF PROPERTY UNDER SPECIAL POWERS INSERTED IN OR
ANNEXED TO REAL ESTATE MORTGAGES.
31
Entitled AN ACT TO AMEND ACT NUMBERED THIRTY-ONE HUNDRED AND THIRTY-FIVE, ENTITLED
AN ACT TO REGULATE THE SALE OF PROPERTY UNDER SPECIAL POWERS INSERTED IN OR ANNEXED TO
REAL-ESTATE MORTGAGES.
32
Posting a cash bond in the amount of P500,000.00 by way of a managers check; CA rollo, pp. 181-
182.

Decision 5 G.R. No. 184045
In an Order
33
dated J anuary 17, 2007, the RTC denied the motion of
Sps. Marquez, while granted that of Sps. Alindog. Unperturbed, Sps.
Marquez elevated the case to the CA on certiorari.
34


The CA Ruling

In a Decision
35
dated February 29, 2008, the CA denied Sps.
Marquezs petition as it found no grave abuse of discretion on the RTCs
part when it issued the injunctive writ that enjoined Sps. Marquez from
taking possession of the subject property. It observed that Sps. Alindog had
indeed adduced prima facie proof of their right to possess the subject
property
36
while the annulment case was pending, adding that the latters
right to remain in possession
37
proceeds from the fact of the subject
propertys earlier sale to them. Thus, while Sps. Marquez concededly had a
right to possess the subject property on account of the consolidation of the
title in their names, the CA nonetheless found no fault on the part of the
RTC for proceeding with caution
38
in weighing the conflicting claims of
the parties and subsequently issuing the writ of preliminary injunction in
Sps. Alindogs favor.

Dissatisfied, Sps. Marquez moved for reconsideration
39
which was,
however, denied in a Resolution
40
dated August 6, 2008, hence, this petition.

The Issue Before the Court

The essential issue in this case is whether or not the CA erred in
finding no grave abuse of discretion on the part of the RTC when it issued
the injunctive writ which enjoined Sps. Marquez from taking possession of
the subject property.

The Courts Ruling

The petition is meritorious.

It is an established rule that the purchaser in an extra-judicial
foreclosure sale is entitled to the possession of the property and can demand
that he be placed in possession of the same either during (with bond) or after
the expiration (without bond) of the redemption period therefor. To this end,
the Court, in China Banking Corp. v. Sps. Lozada
41
(China Banking Corp.),
33
Rollo, pp. 71-72.
34
Id. at 44-67.
35
Id. at 35-41.
36
Id. at 39.
37
Id.
38
Id. at 40.
39
Id. at 207-220.
40
Id. at 42-43.
41
579 Phil. 454 (2008).

Decision 6 G.R. No. 184045
citing several cases on the matter, explained that a writ of possession duly
applied for by said purchaser should issue as a matter of course, and thus,
merely constitutes a ministerial duty on the part of the court, viz.:
42


The procedure for extrajudicial foreclosure of real estate mortgage is
governed by Act No. 3135, as amended. The purchaser at the public
auction sale of an extrajudicially foreclosed real property may seek
possession thereof in accordance with Section 7 of Act No. 3135, as
amended, which provides:

SEC. 7. In any sale made under the provisions of this Act, the purchaser
may petition the Court of First Instance of the province or place where the
property or any part thereof is situated, to give him possession thereof during
the redemption period, furnishing bond in an amount equivalent to the use of
the property for a period of twelve months, to indemnify the debtor in case it be
shown that the sale was made without violating the mortgage or without
complying with the requirements of this Act. Such petition shall be made under
oath and filed in form or an ex parte motion in the registration or cadastral
proceedings if the property is registered, or in special proceedings in the case of
property registered under the Mortgage Law or under section one hundred and
ninety-four of the Administrative Code, or of any other real property
encumbered with a mortgage duly registered in the office of any register of
deeds in accordance with any existing law, and in each case the clerk of court
shall, upon the filing of such petition, collect the fees specified in paragraph
eleven of section one hundred and fourteen of Act Numbered Four hundred and
ninety six as amended by Act Numbered Twenty-eight hundred and sixty-six,
and the court shall, upon approval of the bond, order that a writ of
possession issue addressed to the sheriff of the province in which the
property is situated, who shall execute said order immediately.

The Court expounded on the application of the foregoing provision
in De Gracia v. San Jose, thus:

As may be seen, the law expressly authorizes the purchaser to petition for a
writ of possession during the redemption period by filing an ex parte motion
under oath for that purpose in the corresponding registration or cadastral
proceeding in the case of property with Torrens title; and upon the filing of such
motion and the approval of the corresponding bond, the law also in express
terms directs the court to issue the order for a writ of possession. Under the legal
provisions above copied, the order for a writ of possession issues as a matter
of course upon the filing of the proper motion and the approval of the
corresponding bond. No discretion is left to the court. And any question
regarding the regularity and validity of the sale (and the consequent cancellation
of the writ) is left to be determined in a subsequent proceeding as outlined in
section 8. Such question is not to be raised as a justification for opposing the
issuance of the writ of possession, since, under the Act, the proceeding for this
is ex parte.

Strictly, Section 7 of Act No. 3135, as amended, refers to a situation
wherein the purchaser seeks possession of the foreclosed property during
the 12-month period for redemption. Upon the purchasers filing of the ex
parte petition and posting of the appropriate bond, the RTC shall, as a
matter of course, order the issuance of the writ of possession in the
purchasers favor.

In IFC Service Leasing and Acceptance Corporation v. Nera, the
Court reasoned that if under Section 7 of Act No. 3135, as amended, the
RTC has the power during the period of redemption to issue a writ of
possession on the ex parte application of the purchaser, there is no reason
42
Id. at 470-473, citing De Gracia v. San Jose, 94 Phil. 623, 625-626 (1954), and IFC Service Leasing
and Acceptance Corporation v. Nera, 125 Phil. 595 (1967).

Decision 7 G.R. No. 184045
why it should not also have the same power after the expiration of the
redemption period, especially where a new title has already been
issued in the name of the purchaser. Hence, the procedure under Section
7 of Act No. 3135, as amended, may be availed of by a purchaser seeking
possession of the foreclosed property he bought at the public auction sale
after the redemption period has expired without redemption having
been made.

x x x x

It is thus settled that the buyer in a foreclosure sale becomes the
absolute owner of the property purchased if it is not redeemed during
the period of one year after the registration of the sale. As such, he is
entitled to the possession of the said property and can demand it at
any time following the consolidation of ownership in his name and the
issuance to him of a new transfer certificate of title. The buyer can in
fact demand possession of the land even during the redemption period
except that he has to post a bond in accordance with Section 7 of Act No.
3135, as amended. No such bond is required after the redemption period if
the property is not redeemed. Possession of the land then becomes an
absolute right of the purchaser as confirmed owner. Upon proper
application and proof of title, the issuance of the writ of possession
becomes a ministerial duty of the court. (Emphases and underscoring
supplied; citations and emphases in the original omitted)

In the case of Spouses Espiridion v. CA,
43
the Court expounded on the
ministerial nature of the foregoing issuance as follows:
44


The issuance of a writ of possession to a purchaser in a public auction is a
ministerial act. After the consolidation of title in the buyers name for
failure of the mortgagor to redeem the property, the writ of possession
becomes a matter of right. Its issuance to a purchaser in an
extrajudicial foreclosure sale is merely a ministerial function. The trial
court has no discretion on this matter. Hence, any talk of discretion in
connection with such issuance is misplaced.

A clear line demarcates a discretionary act from a ministerial one.
Thus:

The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon
the propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of official
discretion or judgment.

Clearly, the use of discretion and the performance of a ministerial act
are mutually exclusive. (Emphases and underscoring supplied; citations
omitted)

43
523 Phil. 664 (2006).
44
Id. at 667-668.

Decision 8 G.R. No. 184045
The ministerial issuance of a writ of possession in favor of the
purchaser in an extra-judicial foreclosure sale, however, admits of an
exception. Section 33,
45
Rule 39 of the Rules of Court (Rules) pertinently
provides that the possession of the mortgaged property may be awarded to a
purchaser in an extra-judicial foreclosure unless a third party is actually
holding the property by adverse title or right. In the recent case of Rural
Bank of Sta. Barbara (Iloilo), Inc. v. Centeno,
46
citing the case of China
Banking Corp., the Court illumined that the phrase a third party who is
actually holding the property adversely to the judgment obligor
contemplates a situation in which a third party holds the property by
adverse title or right, such as that of a co-owner, tenant or usufructuary.
The co-owner, agricultural tenant, and usufructuary possess the property in
their own right, and they are not merely the successor or transferee of the
right of possession of another co-owner or the owner of the
property. Notably, the property should not only be possessed by a third
party, but also held by the third party adversely to the judgment
obligor.
47
In other words, as mentioned in Villanueva v. Cherdan Lending
Investors Corporation,
48
the third person must therefore claim a right
superior to that of the original mortgagor.

In this case, it is clear that the issuance of a writ of possession in favor
of Sps. Marquez, who had already consolidated their title over the extra-
judicially foreclosed property, is merely ministerial in nature. The general
rule as herein stated and not the exception found under Section 33, Rule 39
of the Rules should apply since Sps. Alindog hinged their claim over the
subject property on their purported purchase of the same from its previous
owner, i.e., Sps. Gutierrez (with Gutierrez being the original mortgagor).
Accordingly, it cannot be seriously doubted that Sps. Alindog are only the
latters (Sps. Gutierrez) successors-in-interest who do not have a right
superior to them.

That said, the RTC therefore gravely abused its discretion when it
issued the injunctive writ which enjoined Sps. Marquez from taking
possession of the subject property. To be sure, grave abuse of discretion
arises when a lower court or tribunal patently violates the Constitution, the
law or existing jurisprudence.
49
Here, while the RTC had initially issued a
writ of possession in favor of Sps. Marquez, it defied existing jurisprudence
when it effectively rescinded the said writ by subsequently granting Sps.
45
Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given. x x x.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted
to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by
the same officer unless a third party is actually holding the property adversely to the judgment
obligor. (Emphasis supplied)
46
G.R. No. 200667, March 11, 2013, 693 SCRA 110.
47
Id. at 115, citing supra note 41, at 473-474; emphases supplied.
48
G.R. No. 177881, October 13, 2010, 633 SCRA 173.
49
Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, March 19, 2013, 693
SCRA 574, 599-600, citing Fernandez v. Commission on Elections, 535 Phil 122 (2006).

Decision 9 G.R. No. 184045
Alindog's prayer for injunctive relief. The RTC's finding anent the initial
evidence adduced by Sps. Alindog constitutes improper basis to justify the
issuance of the writ of preliminary injunction in their favor since, in the first
place, it had no authority to exercise any discretion in this respect.
Jurisprudence is clear on the matter: without the exception under Section 33,
Rule 39 of the Rules availing, the issuance of a writ of possession in favor of
the purchaser of an extra-judicially foreclosed property - such as Sps.
Marquez in this case - should come as a matter of course, and, in such
regard, constitutes only a ministerial duty on the part of the court. Besides, it
was improper for the RTC to have issued a writ of preliminary injunction
since the act sought to be enjoined, i.e., the implementation of the writ of
possession, had already been accomplished in the interim and thus, rendered
the matter moot. Case law instructs that injunction would not lie where the
acts sought to be enjoined had already become fait accompli (meaning, an
accomplished or consummated act).
50
Hence, since the consummation of the
act sought to be restrained had rendered Sps. Alindog's injunction petition
moot, the issuance of the said injunctive writ was altogether improper.
All told, by acting averse to well-settled jurisprudential rules and
resultantly depriving Sps. Marquez of their right of possession over the
subject property, the Court therefore concludes that the RTC gravely abused
its discretion in this case. In effect, the CA's contrary ruling thereto is
hereby reversed and set aside, which consequentially leads to the
nullification of the writ of preliminary injunction issued by the RTC in favor
of Sps. Alindog, and the reinstatement of the writ of possession issued by the
same court in favor of Sps. Marquez. It must, however, be noted that these
pronouncements are without prejudice to any separate action which Sps.
Alindog may file in order to recover ownership of the subject property.
WHEREFORE, the petition is GRANTED. The Decision dated
February 29, 2008 and Resolution dated August 6, 2008 of the Court of
Appeals in CA-G.R. SP No. 97744, as well as the Orders dated November
14, 2005 and January 17, 2007 of the Regional Trial Court of Tagaytay City,
Branch 18 in SCA No. TG-05-2521 are hereby REVERSED and SET
ASIDE. Accordingly, the writ of preliminary injunction in SCA No. TG-05-
2521 is NULLIFIED, while the Writ of Possession in LRC Case No. TG-
05-1068 is REINSTATED.
SO ORDERED.

ESTELA
Associate Justice
50
Transfield Philippines, Inc. v. Luzon Hydro Corporation, G.R. No. 146717, November 22, 2004, 443
SCRA 307, 339.
Decision
WE CONCUR:
ARTURO D. BRION
Associate Justice
JOS
10
Associate Justice
Chairperson
G.R. No. 184045
~ O
Associate Justice
REZ
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
~
MARIA LOURDES P.A. SERENO
Chief Justice
..